Bartosiake v. Bimbo Bakeries USA, Inc.

632 F.Supp.3d 789

Wayne BARTOSIAKE, individually situated and on behalf of all others similarly situated, Plaintiffs, v. BIMBO BAKERIES USA, INC., Defendant.

Case No. 21-cv-04495

United States District Court, N.D. Illinois, Eastern Division

Signed September 29, 2022

Spencer Sheehan, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiffs.

August Theodore Horvath, Foley Hoag LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, United States District Judge

Plaintiff Wayne Bartosiake brings this lawsuit against Bimbo Bakeries USA, Inc. ("Defendant") individually and on behalf of putative classes of Illinois, Arkansas, and Iowa consumers alleging they were deceived by the word "fudge" on the front label of Defendant's Chocolate Fudge Iced Cake (the "Product"). Plaintiff brings claims under the Illinois Consumer Fraud and Deceptive Business Practice Act ("ICFA"), 815 Ill. Comp. Stat. 505/2; Arkansas and Iowa consumer fraud laws; state law breaches of express and implied warranty of merchantability; the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301; and common law claims for negligent misrepresentation, fraud, and unjust enrichment. Plaintiff also requests class-wide injunctive relief.

Defendant has moved to dismiss the claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff lacks standing to assert injunctive relief. For the reasons stated herein, Defendant's Motion to Dismiss [11] is granted.

BACKGROUND

The following factual allegations taken from the operative complaint (Dkt. 1, "Compl.") are accepted as true for the purposes of the motion to dismiss. See Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021).

The front packaging of Defendant's Product, made under the Entenmann's brand, states "Chocolate Fudge" in large letters and "Iced Cake" directly below in slightly smaller letters. Plaintiff claims that the cake "purport[s] to be iced with chocolate fudge," and that the term "fudge" is misleading because it "gives consumers the impression the Product contains a greater relative and absolute amount of fudge than it does." (Compl. ¶¶ 1-2). Plaintiff alleges that a reasonable consumer expects the term "fudge" to contain a non-de-minimis relative amount of dairy ingredients, like milk and butter, instead of vegetable oils and whey. (Id. ¶47).

A copy of the packaging (as it appears in the complaint) is reproduced below:

Image materials not available for display.

Plaintiff expects the "fudge" in the Product to be a traditional fudge made from sugar, butter, milk or cream, and chocolate. (Id. at ¶¶3-17). But the ingredients, listed on the back of the package, are "vegetable oil (soybean), vegetable shortening (palm, soybean), and whey." (Id. at ¶41). According to Plaintiff, fudge's essential ingredients, butter and milk, are substituted by "lower quality and lower-priced vegetable oils and whey." (Id. at ¶40). Plaintiff alleges that he would not have paid as much for the Product if the front label were not false and misleading. (Id. at ¶84). In this suit, Plaintiff seeks to represent an Illinois class as well as a multi-state class of Iowa and Arkansas consumers. (Id. at ¶86).

ANALYSIS

I. Standard

"To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level." Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir. 2018) (quoting Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014)); see also Fed. R. Civ. P. 8(a)(2) (requiring a complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief"). A court deciding a Rule 12(b)(6) motion "construe[s] the complaint in the light most favorable to the plaintiff, accept[s] all well-pleaded facts as true, and draw[s] all reasonable inferences in the plaintiff's favor." Lax, 20 F.4th at 1181. However, the court need not accept as true "statements of law or unsupported conclusory factual allegations." Id. (quoting Bilek v. Fed. Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021)). "While detailed factual allegations are not necessary to survive a motion to dismiss, [the standard] does require more than mere labels and conclusions or a formulaic recitation of the elements of a cause of action to be considered adequate." Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 614 (7th Cir. 2019) (quoting Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016)).

Dismissal for failure to state a claim is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Deciding the plausibility of the claim is " 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' " McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). On a facial Rule 12(b)(1) challenge, like a Rule 12(b)(6) challenge, this Court construes the Plaintiff's complaint in the light most favorable to the Plaintiff, accepts as true all well-pleaded facts, and draws reasonable inferences in his favor. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015).

For fraud claims and claims of deceptive conduct under ICFA, the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies. Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019). The plaintiff must "plead with particularity the circumstances constituting fraud" and allege the "who, what, when, where, and how" of the alleged conduct. Id.

II. Analysis

A. ICFA, State Consumer Fraud Acts, Fraud Claims

Defendant moves to dismiss, arguing that its label is not deceptive as a matter of law. The Court begins with the ICFA claim, since Defendant's argument seeking to dismiss that claim informs the Court's analysis of the entire class action complaint.

ICFA is "a regulatory and remedial statute intended to protect consumers against fraud, unfair methods of competition, and other unfair and deceptive business practices." Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019) (cleaned up). To prevail on an ICFA claim, "a plaintiff must plead and prove that the defendant committed a deceptive or unfair act with the intent that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages." Vanzant, 934 F.3d at 736. Plaintiff must plead that "the relevant labels are likely to deceive reasonable consumers," which "requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474-75 (7th Cir. 2020) (quoting Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 972-73 (7th Cir. 2020)).¹

"Consumer-protection laws do not impose on average consumers an obligation to question the labels they see and to parse them as lawyers might for ambiguities, especially in the seconds usually spent picking a low-cost product." Id. at 476. Indeed the "reasonable consumer standard does not presume, at least as a matter of law, that reasonable consumers will test prominent front-label claims by examining the fine print on the back label." Id. at 477. "[W]here plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified." Id.; see also Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756 (N.D. Ill. 2015) ("Although ICFA claims often involve disputed questions of fact not suitable to a motion to dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a matter of law."); Zarinebaf v. Champion Petfoods USA Inc., No. 18-cv-6951, 2019 WL 3555383, at *6 (N.D. Ill. July 30, 2019) ("[C]ourts routinely analyze whether statements like these are deceptive as a matter of law under the ICFA.").

Here, Plaintiff says he wanted to "purchase a product that contained fudge, understood as being comprised of a non-de minimis amount of milk fat ingredients, instead of mostly vegetable oils." (Compl. ¶ 95). Plaintiff alleges that "Defendant's false and deceptive representations and omissions are material in that they are likely to influence consumer purchasing decisions." (Id. ¶96). Yet Plaintiff's own complaint alleges that fudge can contain vegetable oils: "the quality of fudge depends on the amount and type of fat-contributing ingredients," and "[t]he fat ingredients are typically from dairy or vegetable oils." (Id. at ¶¶18, 21, emphasis added). As Defendant points out, at times Plaintiff appears to allege that the Product does not contain ("traditional") fudge, and other times, he claims that the Product uses lower quality fudge. (see id. ¶ 2) (the "representation is misleading because it gives consumers the impression the Product contains a greater relative and absolute amount of fudge than it does", and ¶ 39, "consumers believe fudge is present in an amount greater than is the case.") (emphasis added).

As Defendant argues, the label of this mass-produced product "does not make any explicit ingredient or recipe claim." (Dkt. 11-1 at 7).² Moreover, Plaintiff's complaint does not explain why a reasonable consumer would believe the word "fudge" refers only to the icing, not the entire cake. The front label does not say "Fudge Icing", "Iced with Fudge", or "Coated with Fudge." The consumer is purchasing a cake: "Chocolate Fudge Iced Cake." See Bell, 982 F.3d at 476 (explaining that a plaintiff's claims survive if plaintiff "plausibly alleged that the defendants' front labels likely...